Duncan v. Cooper Vision
Filing
32
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 27 Defendants' Motion for Summary Judgment and dismissing the Plaintiff's complaint with prejudice.. Signed by Hon. Michael A. Telesca on 12/6/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
BRENDA DUNCAN,
Plaintiff,
12-CV-6087(T)
DECISION
and ORDER
v.
COOPERVISION, INC.,
Defendant.
__________________________________________
INTRODUCTION
Plaintiff, Brenda A. Duncan (“Duncan”), brings this action
pursuant to Title VII of the Civil Rights Act of 1964, (codified at
42 U.S.C. § 2000e) claiming that Defendant, CooperVision, Inc.
(“CooperVision”), discriminated against her on the basis of her
race,
and
in
retaliation
discrimination against her.
for
her
complaining
of
unlawful
Specifically, Plaintiff claims that
she was denied promotions and advancement opportunities because of
her race.
She also claims that she was terminated from her
employment because she is African American, and in retaliation for
her complaints of workplace discrimination.
Defendant
denies
plaintiff’s
allegations
and
moves
for
summary judgment on grounds that plaintiff has failed to establish
a prima facie case of discrimination or retaliation.
Defendant
further argues that even if Duncan has stated a prima facie case of
discrimination, she has failed to demonstrate that CooperVision’s
reason for terminating her is pretextual.
For the reasons set forth below, Defendants’ motions for
summary
judgment
are
granted,
and
Plaintiff’s
complaint
is
dismissed with prejudice.
BACKGROUND
In October 2006, Plaintiff, Brenda Duncan, became employed by
Defendant,
CooperVision,
Department.
Associate.”)
for
routine
an
employee
in
the
Distribution
CooperVision is a manufacturer and distributor of
contact lenses.
Department.
as
In October 2007, Plaintiff moved to the Packaging
Her position was Distribution Associate I (“Packaging
As a Packaging Associate, Plaintiff was responsible
activities
Distribution Center.
in
packaging
lenses
received
at
the
Plaintiff was one of thirteen individuals
working third shift (from 11:00 p.m. to 7:30 a.m.) in the Packaging
Department.
The third shift employees reported to the Packaging
Supervisor, who in turn reported to CooperVision’s Director of
Packaging Operations, Gary Viele.
In 2009, CooperVision rolled out a training and advancement
program
for
the
Packaging
Progression (“JLP”).
Department
called
the
Job
Level
This replaced the previous, less formal,
method of promotion in the department.
All Packaging Associates,
including Plaintiff, attended a slideshow explaining JLP.
The
slideshow outlined the steps that needed to be taken to move from
a Level I Packaging Associate to a Level II Associate.
The program
required employees to be trained in five or more operations prior
2
to being eligible for advancement. Additionally, to be eligible to
advance, an employee must meet additional criteria including having
no active disciplinary actions pending. Plaintiff was aware of the
requirements for advancement.
After the rollout of JLP, in October, 2010, Plaintiff spoke to
her supervisor as well as the department trainer, and the Director
of Packaging Operations, Viele, about wanting to advance to Level
II.
At that point, Plaintiff was on disciplinary action for
attendance
issues,
and
therefore
would
not
be
eligible
for
promotion until October 2011 (barring any further disciplinary
actions).
Additionally, Plaintiff was trained on only three
operations, and thus would need to be trained on two more in order
to be eligible for advancement.
Plaintiff thereafter trained on
her fourth operation, and CooperVision offered to have Plaintiff
trained on her fifth operation by a temporary worker.
Plaintiff,
however, refused to be trained by a temporary employee as she
preferred to be trained by a facility trainer.
In October 2010, Plaintiff also spoke to Viele about how she
believed she saw preferential treatment in CooperVision promotions.
She stated that it “didn’t look right” and asked Viele to “work
with [her].”
She said nothing about race.
Plaintiff had seen
three employees get promoted before her, but none were promoted
after
the
JLP
rollout.
Additionally,
discipline when promoted.
3
none
were
on
active
CooperVision
management
to
employs
address
a
progressive
employee
model
of
For
deficiencies.
corrective
attendance
problems, CooperVision utilizes corrective action automatically if
the employee has more than six unexcused absences in twelve months.
The first step of discipline is counseling.
for six months.
This remains active
If there is another attendance or performance
problem during this six months, the employee receives the next
level of discipline, a written warning.
active for twelve months.
Written warnings are
If there is another performance issue
during the twelve months, a final written warning is issued.
Any
further occurrences while on a final warning (which runs for twelve
months) results in immediate termination.
In June 2010, Plaintiff was given counseling for missing
sixteen days of work in seven and a half months.
In October 2010,
Plaintiff was placed on a written warning for an unexcused absence
resulting in three consecutive missed days of work.
In December
2010, Plaintiff was issued a final written warning for failing to
sign off on package labels (a production issue).
In May 2011,
CooperVision issued Plaintiff another warning for six unexcused
absences in five months.
On June 22, 2011, Defendant terminated
Plaintiff for failing to initial, date, and sign off on labels.
DISCUSSION
I.
The Defendant’s Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
4
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant
is
entitled
to
judgment
as
a
matter
of
law."
When
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial
Scott, 550 U.S. at 380 (citing Matsushita Elec.
Co.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
586-587
(1986)).
II.
Plaintiff has Failed to Establish a Claim for Failure to
Promote and Discriminatory Termination
A.
Legal Standard for Title VII Claims
Plaintiff alleges in her Complaint that she was discriminated
against on the basis of her race in violation of Title VII of the
Civil
Rights
Act
of
1964,
which
prohibits
an
employer
from
"hir[ing] or . . . discharg[ing] any individual, or otherwise . . .
discriminat[ing]
compensation,
because
of
against
terms,
such
any
individual
conditions,
individual’s
or
race,
with
privileges
color,
respect
of
to
his
employment,
religion,
sex,
or
national origin". 42 U.S.C. § 2000e-2.
Claims of employment discrimination are analyzed under the
well-recognized burden shifting framework set forth in McDonnell
5
Douglas Corp. v. Green, 411 U.S. 792 (1973) and later refined in
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)
and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
Under
the McDonnell Douglas test, the plaintiff bears the burden proving
a prima facie case of discrimination. If the plaintiff succeeds in
stating a prima facie case, the burden of production shifts to the
defendant to state a legitimate, non-discriminatory reason for
taking the employment action at issue.
Should the employer meet
that burden, the burden of production then shifts back to the
plaintiff to show that the reasons proffered by the employer were
not the true reasons for the adverse employment action, but instead
were a pretext for discrimination, and that discrimination was the
real reason.
See Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 252-53 (1981); St. Mary’s Honor Center v. Hicks, 509 U.S.
502-06 (1993).
Although the Second Circuit Court of Appeals has stated that
“the burden that must be met by an employment discrimination
plaintiff to survive a summary judgment motion at the prima facie
stage is de minimis,” Tomka v. Seiler Corp., 66 F.3d 1295 at 1308
(internal citations omitted), it has also noted that “[a] jury
cannot infer discrimination from thin air." Norton v. Sam’s Club,
145 F.3d 114 (2nd Cir.), cert. denied 119 S.Ct. 511 (1998).
B.
Plaintiff’s Failure to Promote Claims
To state a claim for failure to promote, a plaintiff must
demonstrate that she: (1) is a member of a protected class; (2) was
6
qualified for the position for which she applied; and (3) was
denied the position under circumstances giving rise to an inference
of discrimination. Howley v. Town of Stratford, 217 F.3d 141 (2nd
Cir. 2000).
In the instant case, for purposes of this motion, it is
undisputed that Plaintiff, as an African-American, is a member of
a protected class.
However, because the plaintiff has failed to
establish evidence that she was qualified for the position for
which she applied, I find that plaintiff has failed to establish
the second element of a prima facie case of discriminatory failure
to promote.
Additionally, Plaintiff offered not evidence that her
failure to receive a promotion occurred under circumstances giving
rise to an inference of discrimination.
plaintiff
has
failed
to
state
a
I therefore find that
prima
facie
case
of
racial
discrimination.
Plaintiff has failed to show that she met the requirements to
be promoted from Level I Packaging Associate to Level II Packaging
Associate.
It
is
undisputed
that
Plaintiff
was
aware
of
CooperVision’s requirements for promotion under the JLP program.
These requirements include being trained in five or more operations
and
being
on
no
active
disciplinary
action.
It
is
further
undisputed that Plaintiff was only trained on four operations at
the time of her termination.
In fact, Plaintiff admits that
CooperVision attempted to train her on a fifth operation, but she
7
refused training due to dissatisfaction with the trainer assigned.
Further,
Plaintiff
does
from
not
dispute
the
time
that
JLP
she
was
on
active
rolled
out
until
disciplinary
action
her
termination.
Therefore, she was never qualified for promotion to
Level II employee.
Plaintiff further claims that she was discriminated against
due to not being promoted under the pre-JLP rollout requirements in
2009, which Plaintiff failed to raise in her EEOC Charge.
Under
Title VII, Plaintiff must exhaust administrative remedies prior to
bringing suit in federal court.
200 (2d Cir. 2003).
Deravin v. Kerik, 335 F.3d 195,
Even if Plaintiff had asserted this claim in
her EEOC Charge, the allegations would have been time-barred.
Title VII provides that claims for discrimination must be brought
within 300 days of the date on which the alleged discrimination
occurred.
Thus, under Title VII, courts do not have jurisdiction
over claims of discrimination which occurred more than 300 days
prior
to
the
date
on
which
an
administrative
charge
of
discrimination was filed. Here, Plaintiff filed her EEOC Charge on
July 19, 2011. Thus, allegations of discrimination occurring prior
to September 22, 2010 are time-barred.
Additionally, Plaintiff claims that the circumstances in which
she
was
denied
discrimination.
promotion
create
an
inference
of
racial
However, Plaintiff offers no evidence other than
her own subjective belief that Defendant’s promotion decisions were
8
based on race.
This is insufficient to raise a question of fact.
See Lunts v. Rochester City Sch. Dist., 07-CV-6272T, 2011 WL
4074574 (W.D.N.Y. Sept. 13, 2011) aff'd, 515 F. App'x 11 (2d Cir.
2013) cert. denied, 134 S. Ct. 429 (U.S. 2013).
Additionally,
CooperVision made clear the criteria for promotion, and Duncan
admits that she did not fit within those requirements. Further, no
other employees on Duncan’s shift were promoted under the JLP
program, and there is no evidence of similarly situated individuals
who were treated differently than Duncan.
Accordingly, I find no
evidence that could lead a reasonable trier of fact to conclude
that
Duncan’s
lack
of
promotion
raises
an
inference
of
discrimination.
Even assuming arguendo that Duncan has stated a prima facie
case of failure to promote against CooperVision, plaintiff has
failed to rebut the legitimate, non-discriminatory reason proffered
by Defendant for not promoting her.
Specifically, CooperVision
contends that Plaintiff was not promoted because she was on active
disciplinary action, and was not trained on the required number of
operations.
Duncan has failed to rebut CooperVision’s proffered reason for
failing to promote her.
reason
offered
by
She has failed to establish that the
CooperVision
is
pretextual,
or
that
discrimination was the real reason for her failure to be promoted.
CooperVision adopted a promotion policy affecting all employees,
9
and there is no evidence that the policy was applied unfairly, or
in a discriminatory manner.
C.
In
Plaintiff’s Discriminatory Discharge Claims
order
to
establish a
prima
facie
case
of employment
discrimination, Plaintiff must show that (1) she belongs to a
protected class, (2) she was performing his duties satisfactorily,
(3) she was discharged, and (4) her discharge occurred under
circumstances giving rise to an inference of discrimination.
See
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
In the instant case, Plaintiff has failed to state a prima
facie case of employment discrimination.
While it is uncontested
that Plaintiff is a member of a protected class and suffered an
adverse employment action because she was terminated, she has
failed
to
establish
that
she
was
performing
her
duties
satisfactorily or to show an inference of discrimination.
Beginning with the second prong of the prima facie inquiry,
the determination of whether an employee has performed her job in
a
satisfactory
manner
is
based
on
the
employer’s
criteria.
Stephens v. State Univ. of New York at Buffalo, 11 F. Supp. 2d 242,
248 (W.D.N.Y. 1998) (internal citations omitted).
If there is no
evidence that the criteria was applied in bad faith, the judge need
not inquire as to the reasonableness of the criteria.
Id.
Here, CooperVision had a progressive discipline process.
The
process began with counseling, and was escalated to a written
10
warning, followed by a final written warning, and ending with
termination.
This discipline process was used for attendance
issues, performance issues, or a combination thereof.
Here, it is
undisputed that Plaintiff violated both the Defendant’s attendance
policy as well as the company’s operating procedures leading to
disciplinary action.
Further, there is no indication that this
policy was adapted in bad faith.
chronic
attendance
repeatedly
and
counseled
Where, as here, a Plaintiff has
tardiness
and
problems
disciplined
for
following
which
a
she
is
company’s
established procedures, the plaintiff fails to establish that a
reasonable trier of fact could determine that she performed her job
satisfactorily.
See, e.g., Stephens, 11 F. Supp. 2d at 248.
Therefore, I find that Plaintiff failed to establish the second
prong of the prima facie discrimination inquiry.
The fourth prong of the prima facie inquiry requires the
Plaintiff to establish that there is sufficient evidence to allow
a reasonable trier of fact to infer a discriminatory motive.
McLee, 109 F.3d at 135.
See
This can be shown by evidence that
similarly situated employees outside the protected class were not
terminated.
Here,
See Stephens, 11 F. Supp. 2d at 249.
there
is
no
evidence
that
Plaintiff
was
treated
differently than other employees for her attendance and performance
issues.
In fact, Defendant offered evidence that in August 2011,
a Caucasian male (also on a final written warning) was terminated
11
for the same reason Plaintiff was terminated.
Accordingly, I find
that there is no evidence in the record sufficient to allow a
reasonable trier of fact to infer a discriminatory motive for
Plaintiff’s termination.
Even assuming arguendo that Plaintiff has stated a prima
facie case of discriminatory termination against CooperVision,
plaintiff has failed to rebut the legitimate, non-discriminatory
reason
proffered
employment.
by
Defendant
for
terminating
Plaintiff’s
Specifically, CooperVision contends that Plaintiff’s
employment was terminated pursuant to a progressive disciplinary
structure that had been in place for years.
Plaintiff has failed to rebut CooperVision’s proffered reason
for terminating her.
She has failed to establish that the reason
offered by CooperVision is pretextual, or that discrimination was
the real reason for her termination. CooperVision adopted a policy
affecting all employees, and there is no evidence that the policy
was applied unfairly, or in a discriminatory manner.
III. Plaintiff has failed to establish a claim of Retaliation
Plaintiff claims that Defendant fired her in retaliation for
complaining of discrimination against her.
unlawful
discrimination
based
on
To state a claim for
retaliation,
Plaintiff
must
establish that: (1) she was engaged in an activity protected under
Title VII; (2) the employer knew of the activity; (3) the employer
took an adverse employment action against her; and (4) that a
12
causal connection exists between the plaintiff’s protected activity
and the adverse employment action. Raniola v. Bratton, 243 F.3d 610
(2nd Cir. 2001).
In regards to the prima facie case of retaliatory discharge,
it is undisputed that Plaintiff took an adverse employment action
against Plaintiff.
The parties disagree however, as to whether
Plaintiff engaged in protected activity under Title VII and if so,
whether Defendant knew about it.
The parties also disagree as to
whether or not there was a causal connection between the alleged
protected activity and Plaintiff’s termination.
Title VII prohibits retaliation by an employer against an
employee in cases where the employee has engaged in protected
activity under the statute. “Protected activity” includes opposing
employment practices that are prohibited under Title VII (such as
discrimination based on race, color, religion, sex, or national
origin), or making a charge of discrimination, or participating in
any investigation, proceeding, or hearing arising under Title VII.
42 U.S.C. 2000e-3(a). See also, Cruz v. Coach Stores, Inc., 202
F.3d 560, 566 (2nd Cir., 2000)(“The term ‘protected activity’
refers to action taken to protest or oppose statutorily prohibited
discrimination.”).
Here,
Plaintiff
alleges
she
engaged
in
protected activity when she spoke to a supervisor and Director of
Packaging Operations, Viele, about how she believed promotions were
being based upon “preferential treatment.”
13
Although Plaintiff did
not mention what this treatment was based upon, or that she felt
discriminated against, she did recite the names of Caucasian
employees who were promoted, and stated that “you know what it
looks like.” Accordingly, I find that a reasonable jury could find
that
Plaintiff
was
involved
in
protected
activity
and
that
Defendant was aware of it.
Plaintiff claims there was a causal connection between her
complaints
regarding
discharge her.
promotions
and
Defendant’s
decision
to
In order to show a causal connection, the temporal
proximity between the protected activity and the adverse employment
action must be “very close.”
532 U.S. 268, 273 (2001).
Clark Cnty. Sch. Dist. v. Breeden,
Here, nine months elapsed between
Plaintiff’s discussion with Viele and her termination. A Nine month
delay between protected activity and retaliatory action, however,
does not constitute close temporal proximity for the purposes of a
retaliatory discharge claim. See, e.g., Piston v. Cnty. of Monroe,
08-CV-6435P, 2012 WL 4490652 *14 (W.D.N.Y. Sept. 27, 2012) (noting
seven
month
lapse
insufficient
to
infer
causal
connection).
Accordingly, I find that Plaintiff has failed to state a prima
facie case of retaliation against CooperVision, because there is no
evidence that there was a causal connection between Plaintiff’s
protected activity and her discharge.
Even assuming arguendo that Plaintiff has stated a prima facie
case of retaliatory discrimination against CooperVision, plaintiff
14
has failed to rebut the legitimate, non-discriminatory reason
proffered by Defendant for terminating Plaintiff’s employment.
Specifically, CooperVision contends that Plaintiff’s employment was
terminated pursuant to a progressive disciplinary structure that
had been in place for years.
Plaintiff has failed to rebut CooperVision’s proffered reason
for terminating her.
She has failed to establish that the reason
offered by CooperVision is pretextual, or that discrimination was
the real reason for her termination. CooperVision adopted a policy
affecting all employees, and there is no evidence that the policy
was applied unfairly, or in a discriminatory manner.
Accordingly,
I grant Defendant’s motion for summary judgement with respect to
Plaintiff’s retaliation claim.
CONCLUSION
For the reasons set forth above, Defendants’ motions for
summary
judgment
are
granted,
and
Plaintiff’s
complaint
is
dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
December 6, 2013
15
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